Citation Nr: 0503858
Decision Date: 02/14/05 Archive Date: 02/22/05
DOCKET NO. 03-32 664 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to Dependency and Indemnity Compensation (DIC) as
a surviving child.
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
M. Siegel, Counsel
INTRODUCTION
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an October 2002 determination by the
Denver, Colorado Regional Office (RO) of the Department of
Veterans Affairs (VA) that the appellant was not entitled to
DIC. She indicated disagreement with that decision and,
following issuance of a statement of the case, perfected her
appeal by submitting a substantive appeal (VA Form 9) in
September 2003.
The veteran had recognized active service in the Merchant
Marine for ocean-going voyages from December 13, 1943 to
December 26, 1943; from January 3, 1944 to February 25, 1944;
and from March 20, 1944 to December 10, 1944. The veteran's
ship was torpedoed and sank, and he was presumed lost due to
enemy action.
The appellant is his daughter.
The appellant had a personal hearing before the undersigned
Veterans Law Judge at the RO, in September 2004. The
transcript of that hearing is associated with the claims
folder.
FINDINGS OF FACT
1. The veteran served in the Merchant Marine and died in
action in December 1944.
2. The appellant, who is the daughter of the veteran, was
seven years of age at the time of his death.
3. Effective in January 1988, veteran status was
retroactively conferred on members of the Merchant Marine
during World War II. At the time, the appellant was 50 years
of age.
CONCLUSION OF LAW
Provisions establishing identified Merchant Marine service as
active service for VA purposes may not be applied
retroactively. VA is precluded from awarding the appellant
DIC as the veteran's surviving child, as a matter of law.
38 C.F.R. §§ 3.4, 3.5, 3.7(x) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant, age 67, has requested that she be awarded DIC
as a surviving child of a deceased World War II veteran.
Veterans Claims Assistance Act
Under the Veterans Claims Assistance Act of 2000, 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002) (the VCAA), VA has a
duty to notify a claimant of any specific information and
evidence needed to substantiate and complete a claim.
Further, VA must tell a claimant what specific part of that
evidence he must provide, and what specific part VA will
attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a);
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
In this case, however, the question of VA compliance with
VCAA requirements is irrelevant; as explained below, the
determination as to whether the appellant may be awarded DIC
benefits may be paid is based solely on whether, by law, the
appellant can be considered to be a surviving child of the
deceased veteran, and whether DIC, in these circumstances,
can be awarded retroactively.
The facts in this case are undisputed. No further
development under the VCAA is warranted because there is no
possibility whatever that any further development could
substantiate the claim. See Conway v. Principi, No. 03-7072
(Fed. Cir. Jan. 7, 2004); see generally Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet.
App. 227, 231-32 (2000); see also Livesay v. Principi, 15
Vet. App. 165 (2001) (en banc) [the VCAA is not applicable
where it could affect a pending matter and could have no
application as a matter of law].
Pertinent law and regulations
DIC
"Compensation" means a monthly payment made by VA to a
veteran because of a service-connected disability, or to a
surviving spouse, child, or parent of a veteran because of
the service-connected death of the veteran occurring before
January 1, 1957. Basic entitlement to death compensation
exists for a surviving spouse, child or children, and
dependent parent or parents if the veteran died before
January 1, 1957. 38 C.F.R. § 3.4 (2004).
"Dependency and indemnity compensation" means a monthly
payment made by VA to a surviving spouse, child, or parent
(1) because of a service-connected death occurring after
December 31, 1956, or (2) pursuant to the election of a
surviving spouse, child, or parent, in the case of such a
death occurring before January 1, 1957. Basic entitlement
for a surviving spouse, child or children, and parent or
parents of a veteran exists, when death occurred prior to
January 1, 1957, and the claimant was receiving or eligible
to receive death compensation on December 31, 1956, under
laws in effect on that date or who subsequently becomes
eligible by reason of a death that occurred prior to January
1, 1957. 38 C.F.R. § 3.5 (2004).
Veteran status
In general, VA benefits are awarded to veterans or to
survivors of veterans. Included among groups which are
considered to have performed active military, naval, or air
service and are thus considered to be veterans are members of
the American Merchant Marine in oceangoing service during
World War II, December 7, 1941 to August 15, 1945. 38 C.F.R.
§ 3.7(x)(15) (2004); see also Pub. L. 95-202, § 401.
Recognition of such service as active service, for VA
purposes, became effective on January 19, 1988. See 53 Fed.
Reg. 2775 (1988). The law provides that in no event shall an
award based on such service be made effective earlier than
November 23, 1977. 38 C.F.R. § 3.7(x) (2004).
Factual background
The facts in this case are not in dispute. The appellant was
born in 1937. Her mother died in childbirth (hearing
transcript, page 3). The veteran joined the Merchant Marine
during World War II. In December 1944, his ship was
torpedoed and broke in two off Stumble Head, Wales. The
veteran was missing and was presumed to have been lost. The
appellant, who was age 7 at the time of the veteran's death,
made her way in the world without VA benefits because none
were available at the time.
As was explained above, many years later the law changed, and
members of the Merchant Marine were recognized as veterans.
At the time, the appellant was 50 years of age. In September
2002, the appellant, then age 64, applied for DIC.
Her claim was denied by the RO in October 2002 because she
was over the age of 18 and therefore not eligible for
payments as the child of a deceased veteran.
Analysis
The appellant's father had ocean-going service in the
Merchant Marine during a period of armed conflict, and as
such is now deemed to have been a veteran for VA purposes;
see 38 C.F.R. § 3.7(x)(15).
While in such service, the veteran was killed in action in
December 1944.
The appellant was 7 years old at the time of her father's
death. She would have, accordingly, been deemed eligible for
DIC if her father had been considered to have been a veteran
at that time. However, Merchant Marine service was not
recognized at that time as constituting active service for VA
purposes. Indeed, as discussed above, such service was not
recognized as constituting active service until January 1988,
when the appellant was 50 years old. At that time, of
course, she was no longer a child, as noted by the RO in its
denial of her claim.
The appellant, while readily acknowledging her age,
nonetheless contends that she should be awarded DIC on the
premise that the determination that Merchant Marine service
during World War II constituted active service should be
applied retroactively. That is, she argues that, since it
has now been determined that her father had in fact been a
veteran at the time of his death, at which time she was 7
years old, she would have been entitled to DIC in December
1944, and that such compensation should be awarded to her
now.
The Board is sympathetic to the appellant's loss and to her
claim. However, there is simply no basis under the law by
which her claim can be granted. The law is quite clear in
stipulating that DIC is to awarded only to a child; while she
points out that she was a child when her father was killed,
she was, at the time she filed for DIC in September 2002, 64
years old.
While the regulations provide DIC, arising from a death prior
to January 1, 1957, when a claimant "subsequently becomes
eligible," the appellant at no time could establish such
eligibility. When her deceased father achieved veteran
status arising from his Merchant Marine service in January
1988, she was not a child. Eligibility is premised on a
revision of law, but eligibility is established based on
status as of the date of the claim. The appellant, when she
filed her claim, was not a child. She cannot be awarded DIC
based on a status she no longer has.
Moreover, there is no means by which the Board can award DIC
benefits retroactively, absent statutory or regulatory
authority therefor. No such authority is known to the Board.
Indeed, the regulations specifically prohibit an award based
on service recognized under 38 C.F.R. § 3.5(x) effective
prior to November 23, 1977.
The appellant appears to be raising an argument couched in
equity. In essence, she contends that she has been placed in
a "Catch-22" situation in that she could not apply for DIC
while she was a child because her deceased father did not
have veteran status at that time, and when veterans status
was finally conferred she was no longer a child and therefore
was ineligible for DIC. The Board appreciates the
appellant's tragic circumstances. However, the Board is
bound by the law and is without authority to grant benefits
on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West
2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The
Board has decided this case based on its application of this
law to the pertinent facts.
In brief, the law, and not the facts, are dispositive in this
case. No matter what evidence the appellant could present,
the law does not allow for the award of DIC for the now aging
children of those who are veterans by virtue of their
Merchant Marine service. In instances in which the law and
not the evidence is dispositive, the United States Court of
Appeals for Veterans Claims has held that the claim should be
denied or the appeal to the Board terminated because of the
absence of legal merit or the lack of entitlement under the
law. Cf. FED.R.CIV.P. 12(b)(6) ("failure to state a claim
upon which relief can be granted"). Sabonis v. Brown,
6 Vet. App. 426 (1994) [where the law is dispositive of the
claim, the claim should be denied because of lack of
entitlement under the law].
While the Board must again note that it is sympathetic to the
circumstances of the appellant's claim, it must also point
out that it is bound by the regulations of the Department in
deciding the appeals that come before it. See 38 U.S.C.A.
§ 7104(c) (West 2002). The appellant's request for DIC is a
claim in which the law, rather than the facts, is
dispositive; it must accordingly be denied.
ORDER
Entitlement to DIC as the veteran's surviving child is
denied.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs